In his first majority opinion as a U.S. Supreme Court justice, Brett Kavanaugh on Tuesday issued a pro-arbitration decision that won unanimous support from his new colleagues.

In the case Henry Schein v. Archer and White Sales, the issue was whether the Federal Arbitration Act permits a court to decline to enforce an agreement that delegates arbitrability questions to an arbitrator, if the court finds the arbitrability claim “wholly groundless.”

Kavanaugh said no, vacating a decision by the U.S. Court of Appeals for the Fifth Circuit.

“The Act does not contain a ‘wholly groundless’ exception,” Kavanaugh wrote, “and we are not at liberty to rewrite the statute passed by Congress and signed by the president. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.”

During oral argument in late October, some liberal justices expressed dissatisfaction with that outcome. Justice Stephen Breyer asked what would happen if the arbitration claim is “really weird.” He added, “I mean, you want to say no exception at all? He says my claim here is that a Martian told me to do it. OK?”

But the liberal justices joined in Kavanaugh’s opinion nonetheless. It is customary for new justices to be assigned to write opinions in cases that are unanimous.

The decision was a win for Kannon Shanmugam of Williams & Connolly, who argued against Dan Geyser of Geyser PC. Shanmugam was also the winning lawyer in Justice Neil Gorsuch’s maiden opinion in the 2017 case Henson v. Santander Consumer USA.

Kavanaugh’s opinion was a terse 10 pages long, written in straightforward prose, and he began the opinion with a brief summary of the case and its outcome, which not all justices do.

Read the ruling in Henry Schein, Inc. v. Archer & White Sales Inc.:

Tony Mauro

Tony Mauro, based in Washington, covers the U.S. Supreme Court. A lead writer for ALM's Supreme Court Brief, Tony focuses on the court's history and traditions, appellate advocacy and the SCOTUS cases that matter most to business litigators. Contact him at tmauro@alm.com. On Twitter: @Tonymauro

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